Scottish Court of Session Decisions

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Cite as: [1868] ScotLR 6_318 (6-1-1868)

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SCOTTISH_SLR_Court_of_Session

Page: 318↓

Court of Session Inner House Second Division.

saturday, Febuary 6 1868.

Lord Peesident

6 SLR 318

Blackburn

v.

Glasgow Corporation Water-Works Commissioners.

Subject_1Possessory Right
Subject_4Agreement— Servitude.
Facts:

A proprietor of land who had sold part to a water company, with right of access at all times to inspect the works, held not entitled violently to remove certain means of access erected by the company, and peaceably possessed by them for upwards of seven years.

Headnote:

In 1858 the appellant, Mr Blackburn of Killearn, disponed to the respondents (petitioners in the Inferior Court), for the purposes of their statutory works, a portion of the lands of Killearn, and a right of servitude or wayleave through certain other portions of the lands, “ with right of access to the lands and works on all necessary occasions, for inspecting, maintaining, or repairing the said works,” the respondents being bound to pay all surface or other damages caused by them exercising the right of access, besides restoring the land to its original state. The respondents alleged that prior to 1860 they erected certain stiles and gates, with the knowledge and consent of the appellant, and had possessed them without challenge for more than seven years, but the defender bad recently, brevi manu, demolished these means of access, in order to exclude the inspectors of the corporation from inspecting the works. They petitioned in the Sheriff-court for restoration of their means of access, and for interdict.

The Sheriff-substitute (Sconce) held that the petitioners were entitled to habitual access to their works, and remitted to a land-valuator to inspect the premises and report as to the facilities which should be afforded to the pursuer, the defender being bound to restore such facilities as might be found reasonable.

The Sheriff' (Moir) adhered.

After the report was given in, the Sheriff-substitute appointed certain works to be done in terms the recommendations.

The respondent appealed.

Watson and Macdonald for appellant.

Millak and Buknet for respondent.

At advising—

Judgment:

Lord Peesident— If I thought there was anything before us except the possessory question, I should hesitate to affirm the interlocutor of the Sheriff-substitute, for there are a good many findings in law in that interlocutor which we are not bound to deal with, for they are not necessary for determination of the question before us. These findings may stand as innocuous in the possessory question, but I am not to be understood as affirming them. I take a simple view of the case. This Water-works Corporation obtained a permanent right of servitude over these lands, for the purpose of conveying their pipes through the defenders' lands, and they have a full right of access for inspecting their works. Now, it is perhaps difficult to determine what amount of possession of the ground is implied in such a right; but it is unnecessary to consider that, because, after the Waterworks Corporation acquired their right, they took a certain possession, and erected a number of stiles and gates, and other facilities to enable them to have communication on foot from one field to another along the line of works passing through Mr Blackburn's estate. This they did more than seven years ago. Mr Blackburn says be was nut aware of these proceedings. But that is immaterial. At a recent date he has via facti removed these stiles, so as to prevent that amount of access and that kind of occupation that the Water-works Corporation had previously enjoyed for seven years, and this is the cause of the present application. This application asks restoration of these accommodation works, as they may be called, and interdict against Mr Blackburn interfering with the Corporation in the exercise of that right of access which they have hitherto enjoyed. There is no good answer to that. Mr Blackburn may be right on the

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merits of his complaint, that the Corporation are carrying their occupation further than is necessary for their works, but this is not a process in which that can he determined, for this depends on whether there has been, on the part of Mr Blackburn, a violent inversion of the state of possession for the previous seven years. That being so, I see no reason for interfering with the judgment of the Sheriff.

The other Judges concurred, Lord Kinloch expressing an opinion tha tthe seven years' possession by the respondents was longer than was necessary in the circumstances to support their case.

Counsel:

Agents for Appellant— Mackenzie & Black, W.S.

Agents for Respondents— Campbell & Smith, S.S.C
1869